S N COMPUNAARY Vs. RMD PUBLISHERS P LTD

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and perused the entire record of the winding -up petition. It is another winding -up petition placed before the court today and wherein I have no hesitation to state that the winding -up jurisdiction of the court has been made by the litigants a mode of recovery of their dues against the companies. It is misconception prevailing amongst the creditors that winding -up petition is only remedy in the matter. The effective remedy is available to this class of litigants, reference may have to Order 37 of the CPC. It is not gainsay that even if what it is prayed for in the petition is granted, I have my own reservation whether the petitioner would be able to get a single penny towards its dues from the respondent company. The petitioner is not a secured creditor. My experience as a Company Judge and Lawyer is that even by sale of assets of the Company in liquidation the amount received hardly meets out the dues of the secured creditors.

(2.) BE that as it may the sine qua non for entertainment of the petition for winding -up of the respondent company on the ground of its inability to pay debts is that a legal and valid notice is required to be served upon it under Section 434 of the Companies Act, 1956. Section 433 of the Companies Act, 1956 provides the circumstances in which the company may be wound up by the court. It is not in dispute that the petitioner has prayed for winding -up of the respondent company under Section 433(e) of the Companies Act, 1956. Section 434 of the Companies Act, 1956 makes a provision, - A company shall be deemed to be unable to pay its debts if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditors. Thus as per the provisions as contained in Section 434 of the Companies Act, 1956 the notice is to be delivered at the address of registered office of the company by registered post AD. The envelop of the notice is there on the record as Annexure -5 and the address written thereon reads as under:

(3.) IT is not gainsay that it is not a notice to the company. The Managing Director is not a Company and thus the refusal thereof by him will not be taken as if the notice delivered to the Company. As there is no valid delivery of the notice under Section 434 of the Companies Act, 1956, this company petition is not maintainable. That apart on the record the petitioner only produced the copies of invoices. He has not produced the delivery challans of the goods. The invoices are not conclusive evidence to accept the case of the petitioner. The petitioner has to establish to the satisfaction of the court that the goods which were sent under the invoices aforesaid had, in fact, been received by the respondent company. The petitioner wants to recover the amount allegedly due from the respondent company under the threat of this company petition.